Opinion
NO. 22-CA-17
09-14-2022
Kim S. TUMMINELLO and Tim Tumminello, Individually, and on Behalf of Savanna Tumminello v. Regel L. BISSO
COUNSEL FOR PLAINTIFF/APPELLANT, KIM S. TUMMINELLO AND TIM TUMMINELLO, INDIVIDUALLY, AND ON BEHALF OF SAVANNA TUMMINELLO, Pierre F. Gremillion, Metairie COUNSEL FOR DEFENDANT/APPELLEE, REGEL L. BISSO, David S. Daly, Elliot M. Lonker, New Orleans
COUNSEL FOR PLAINTIFF/APPELLANT, KIM S. TUMMINELLO AND TIM TUMMINELLO, INDIVIDUALLY, AND ON BEHALF OF SAVANNA TUMMINELLO, Pierre F. Gremillion, Metairie
COUNSEL FOR DEFENDANT/APPELLEE, REGEL L. BISSO, David S. Daly, Elliot M. Lonker, New Orleans
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
JOHNSON, J.
Plaintiffs/Appellants, Kim S. Tumminello and Tim Tumminello, appeal the sustaining of the peremptory exception of peremption that dismissed their legal malpractice lawsuit in favor of Defendant/Appellee, Regel L. Bisso, from the 24th Judicial District Court, Division "J". For the following reasons, we dismiss the appeal without prejudice and remand the matter for further proceedings. FACTS AND PROCEDURAL HISTORY
On February 5, 2021, the Tumminellos filed a "Petition for Damages" against Regel Bisso. In their petition, the Tumminellos asserted that Mr. Bisso was their attorney of record from 2005 until 2020 for a medical malpractice action involving their child, Savanna Tumminello. They alleged that Mr. Bisso committed legal malpractice by negligently failing to take the necessary steps to pursue their medical malpractice action and preserve their legal rights, which caused their action to be abandoned by operation of law.
Kim S. Tumminello, et al. v. Columbia Lakeside Hospital, et al ., 24th Judicial District Case No. 549-798, was dismissed on January 12, 2021 pursuant to an ex parte motion for dismissal on the grounds of abandonment.
On April 7, 2021, Mr. Bisso filed an answer and reconventional demand in response to the Tumminellos’ petition. In his reconventional demand, Mr. Bisso alleged that the Tumminellos are indebted to him in the amount of $3,384.50, together with legal interest from the date of demand, reasonable attorney's fees, and all costs of the proceedings, for an outstanding legal fees balance. On the same date as the filing of the answer and reconventional demand, Mr. Bisso also filed a peremptory exception of peremption, asserting that the Tumminellos’ petition was perempted pursuant to La. R.S. 9:5605. The Tumminellos answered the reconventional demand, and a hearing on the exception of peremption was set for August 9, 2021.
At the conclusion of the exception hearing, the trial court found that "it does not seem plausible to believe that [Mr. Bisso] took any actions to fraudulently conceal that malpractice" and sustained the exception of peremption. The trial court intentionally opted not to rule upon anything concerning the reconventional demand. A written judgment was rendered on August 25, 2021. The entirety of the judgment reads as follows:
Considering the pleadings, the testimony of Regel L. Bisso, Kim Tumminello, Tim Tumminells, the argument of counsel, and for the reasons orally assigned, the Court enters the following judgment:
IT IS HEREBY ORDERED that the Peremptory Exception of Peremption filed by defendant, REGEL L. BISSO, is GRANTED in its entirety, and plaintiffs’ claims against defendant BISSO are dismissed, with prejudice, at plaintiffs’ costs.
IT IS FURTHER ORDERED that the Reconventional Demand filed by REGEL L. BISSO, in proper person, shall remain in full force and effect and is not being dismissed with the main demand.
The instant appeal by the Tumminellos followed that judgment.
Lack of Appellate Jurisdiction
In the case at bar, the trial court rendered a judgment that resolved the demands of the Tumminellos’ petition by dismissing the claims with prejudice. However, the claims set forth in Mr. Bisso's reconventional demand were purposefully not considered or decided by the trial court at that time.
Pursuant to La. C.C.P. art. 1915(B),
(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention,
the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay .
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
(Emphasis added).
The judgment in this matter does not adjudicate the claims of all the parties involved because it only disposes of the Tumminellos’ claims in their original petition. The judgment does not dispose of Mr. Bisso's reconventional demand. Further, there was no expressed determination that there is no just reason for delay, as required by La. C.C.P. art. 1915(B)(1). Thus, the judgment before us is not a final appealable judgment. (See , Holmes v. Paul , 18-140 (La. App. 5 Cir. 8/29/18), 254 So.3d 825, 828, where this Court held that a judgment on the determination of a principal demand between parties that does not consider or dispose of a reconventional demand between the same parties is not a final, appealable judgment under La. C.C.P. art. 1915(A) and must be designated as a final judgment pursuant to La. C.C.P. art. 1915(B).). Accordingly, we dismiss the appeal without prejudice. See , Bazile v. Zetzmann , 21-149, pp. 2-3 (La. App. 5 Cir. 11/24/21), 347 So.3d 1072 ; see also , City of Gretna v. Morice , 13-85 (La. App. 5 Cir. 10/30/13), 128 So.3d 468, 470-71.
We recognize that La. C.C.P. art. 2088(A)(11) allows the trial court to certify a partial judgment, in accordance with La. C.C.P. art. 1915(B), after a motion for appeal has been granted. However, there was no certification of the partial judgment rendered and supplemented into the instant appellate record.
DECREE
For the foregoing reasons, this appeal is dismissed without prejudice and remanded to the trial court for further proceedings.
APPEAL DISMISSED;
REMANDED
CHEHARDY, J., DISSENTS WITH REASONS
I agree with the majority that the judgment under review is not final judgment under La. C.C.P. art. 1915(B). However, rather than dismiss the instant appeal, I would issue this disposition as an interim opinion and remand the case to the trial court with instructions. Specially, "[i]n the interest of justice and judicial economy," I would remand the matter for a period of thirty days therefrom to make a determination as to whether to designate the judgment under review as a final judgment after an express determination that there is no just reason for delay. See In re Interdiction of Gambino , 20-00312 (La. 6/3/20), 296 So.3d 1046 (per curiam ); Rizzo v. Louisiana Office of Alcohol and Tobacco Control , 21-304 (La. App. 5 Cir. 1/20/22), 347 So.3d 1103, 1108–09 ; see also La. C.C.P. art. 2088(A)(11) (which, according to 2021 Comment (b), specifically codified the Louisiana Supreme Court's decision in Gambino , supra ). Such a determination by the trial court would make this judgment immediately appealable under La. C.C.P. art. 1915(B). In the event the trial court makes such a determination and designation, appellant would then be given ten days to supplement the record with the trial court's determination and designation. Rizzo , 347 So.3d at 1108–09. In the absence of such a determination and designation by the trial court within the thirty-day period, this appeal would be dismissed for lack of jurisdiction at that time.
The cases relied upon the majority as authority to dismiss this appeal were decided prior to the Legislature's 2021 amendment to La. C.C.P. art. 2088(A)(11) —which specifically states that the trial court retains jurisdiction in a case wherein an order of appeal has been granted and an appeal bond timely filed to "[c]ertify a partial judgment or partial summary judgment in accordance with Article 1915(B)." Additionally, I find the most recent pronouncement by this Court in Rizzo , supra , which addressed a partial judgment similar to the judgment under review in the instant case, controls the outcome herein.
Accordingly, I would issue this opinion as an interim opinion and remand the matter to the trial court with instructions as outlined above.